| Matter of Brown v Fischer |
| 2012 NY Slip Op 00609 [91 AD3d 1336] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Lasean Brown, Petitioner, v Brian Fischer,Commissioner, New York State Department of Correctional Services, Respondent. |
[*1]Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the SupremeCourt in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [MarkH. Dadd, A.J.], entered August 11, 2011) to review a determination of respondent. Thedetermination found after a Tier III hearing that petitioner had violated various inmate rules.
It is hereby ordered that the determination is unanimously annulled on the law and factswithout costs, the petition is granted and respondent is directed to expunge from petitioner'sinstitutional record all references to the violation of inmate rules 102.10 (7 NYCRR 270.2 [B][3] [i]) and 107.20 (7 NYCRR 270.2 [B] [8] [iii]).
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annulthe determination, following a Tier III disciplinary hearing, that he violated inmate rules 102.10(7 NYCRR 270.2 [B] [3] [i] [threats of violence]) and 107.20 (7 NYCRR 270.2 [B] [8] [iii][false statements]). We agree with petitioner that the determination is not supported bysubstantial evidence.
Petitioner was charged with violating the two rules at issue based upon allegations that hewrote a threatening letter to a counselor at a correctional facility. Respondent contends that theinmate misbehavior report, the testimony of the correction officer who wrote that report, andseveral handwriting exemplars submitted by or seized from petitioner constitute substantialevidence establishing that he violated the rules in question. We reject that contention. Themisbehavior report contains no firsthand information. Rather, the correction officer who wrote itinterviewed a counselor who told him that unnamed inmate informants said that petitioner wasgoing to write a letter after the counselor discharged petitioner from certain duties at the facility.Similarly, the correction officer who wrote the report testified that he interviewed the counselorand compared the letter that petitioner purportedly wrote to handwriting exemplars that heobtained from petitioner, and the correction officer concluded therefrom that petitioner hadwritten the letter.
[*2]It is well settled that misbehavior reports may constitute substantial evidence to support adetermination (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). Where,however, "the misbehavior report was not written by a correction officer who witnessed theconduct in question, the record must contain facts establishing some indicia of reliability to thehearsay before the report may be considered sufficiently relevant and probative to constitutesubstantial evidence" (Matter of McIntosh v Coughlin, 155 AD2d 762, 763 [1989]). We note thata hearing officer is not required to interview informants to determine the credibility of theirhearsay statements in the misbehavior report but, rather, New York courts apply the federalstandard that "any reasonable method for establishing the informant's reliability will suffice" toestablish the credibility of such inmates (Matter of Abdur-Raheem v Mann, 85 NY2d 113, 121[1995]). An informant's credibility may be established where the information provided by theinformant is "sufficiently detailed" to enable a hearing officer to assess the informant's reliability(Matter of Debose v Selsky, 12 AD3d 1003, 1004 [2004]), or the information provided to thehearing officer establishes that the informant provided the information based on personalknowledge (cf. Matter of Holmes v Senkowski, 238 AD2d 629 [1997]). Here, however, theHearing Officer had no information to enable him to assess the credibility of the unnamed inmateinformants who spoke to the counselor about the letter that petitioner allegedly wrote, and thusthe misbehavior report does not constitute substantial evidence supporting the petition (seeMatter of Daise v Giambruno, 279 AD2d 911, 911-912 [2001]).
Furthermore, respondent is correct that "the trier of fact (here, the Hearing Officer) maymake his or her own comparison of handwriting samples in the absence of expert testimony onthe subject . . . Thus, the handwriting samples alone the . . . letter[ ] and exemplars can form thebasis for a determination of guilt in a case such as this if there are sufficient similarities betweenthe two to comprise substantial evidence that they were written by the same person" (Matter ofSmith v Coughlin, 198 AD2d 726, 726 [1993]). [*3]Upon our independent review of thoseexemplars, we are unable to find that there are sufficient similarities between them "to comprisesubstantial evidence that they were written by the same person" (id.). Consequently, we concludethat the determination is not supported by substantial evidence and must be annulled. Because itappears from the record that petitioner has already served his administrative penalty, theappropriate remedy is expungement of all references to the violations of those rules from hisinstitutional record (see Matter of Cody v Fischer, 46 AD3d 1371 [2007]). Present Scudder, P.J.,Smith, Sconiers, Gorski and Martoche, JJ.